Opinion
C/A No. 0:18-1190-TMC-PJG
05-31-2019
Yolanda Juanita Stevenson, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Yolanda Juanita Stevenson, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be affirmed.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In August 2014, Stevenson applied for DIB and SSI, alleging disability beginning December 31, 2008. Stevenson's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on February 7, 2017 at which Stevenson, who was represented by W. Blake Cummings, Esquire, appeared and testified. The ALJ also heard testimony from a vocational expert. Subsequent to the hearing, Stevenson amended her alleged disability onset date to March 1, 2014. The ALJ issued a decision on April 19, 2017 concluding that Stevenson was not disabled from March 1, 2014 through the date of the decision. (Tr. 12-20.)
Stevenson was born in 1966 and was forty-seven years old at the time of her amended alleged disability onset date. She has an eighth-grade education and has past relevant work experience as a salesperson and a security guard. (Tr. 208.) Stevenson alleged disability due to depression, breathing problems, and high blood pressure. (Tr. 207.)
In applying the five-step sequential process, the ALJ found that Stevenson had not engaged in substantial gainful activity since her amended alleged onset date of March 1, 2014. The ALJ also determined that Stevenson's history of affective disorder, post-traumatic stress disorder, and anxiety disorder were severe impairments. However, the ALJ found that Stevenson did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Stevenson retained the residual functional capacity to
perform a full range of work at all exertional levels but with the following nonexertional limitations: limited to simple, routine, and repetitive tasks performed in a work environment free of fast-paced production requirements; involving only simple, work-related decisions; and few, if any, workplace changes. The claimant is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting. She can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday with only occasional interaction with the public and co-workers.(Tr. 16.) The ALJ found that Stevenson was unable to perform any past relevant work, but that considering Stevenson's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Stevenson could perform. Therefore, the ALJ found that Stevenson was not disabled from March 1, 2014 through the date of the decision.
The Appeals Council denied Stevenson's request for review on April 5, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Stevenson raises the following issues for this judicial review:
I. Did the ALJ commit reversible error by issuing an RFC that failed to account for time off task?(Pl.'s Br., ECF No. 10.)
II. Did the ALJ commit reversible error by failing to determine that Plaintiff had a severe physical impairment?
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527, 416.913, 416.927. Because the instant claims were filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Stevenson's applications for benefits were filed, unless otherwise specified.
A. Concentration, Persistence, or Pace
Stevenson first challenges the ALJ's residual functional capacity assessment, relying on the decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), and subsequent unpublished decisions in this district. Specifically, Stevenson argues that the residual functional capacity as determined by the ALJ fails to account for his finding that Stevenson had "moderate limitations" with concentration, persistence, or pace at Step Three of the sequential evaluation.
A claimant's residual functional capacity ("RFC") is "the most [a claimant] can still do despite [her] limitations" and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In assessing residual functional capacity, an ALJ should scrutinize "all of the relevant medical and other evidence." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Social Security Ruling 96-8p further requires an ALJ to reference the evidence supporting his conclusions with respect to a claimant's residual functional capacity. Further, "remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio, 780 F.3d at 636 (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).
Pertinent here, in Mascio, the Fourth Circuit held that remand was warranted in part because the ALJ's hypothetical question to the vocational expert was legally insufficient in that it failed to include—without any explanation by the ALJ—the ALJ's finding of moderate limitation on the claimant's ability to maintain concentration, persistence, or pace at Step Three. Mascio, 780 F.3d at 638. The Fourth Circuit stated that it "agree[d] with other circuits that an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.' " Id. (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). However, the Court continued, stating:
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.Mascio, 780 F.3d at 638 (citation omitted).
Contrary to Stevenson's assertions, her case is not directly on point with Mascio or even subsequent case law from this district. Unlike in Mascio, the ALJ in Stevenson's case did not restrict the hypothetical question to simple, routine tasks or unskilled work. Rather, in this case, the hypothetical question provided additional significant limitations that clearly account for Stevenson's moderate limitations in concentration, persistence, or pace. As quoted above, the ALJ indicated that Stevenson was
limited to simple, routine, and repetitive tasks performed in a work environment free of fast-paced production requirements; involving only simple, work-related decisions; and few, if any, workplace changes. The claimant is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting. She can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday with only occasional interaction with the public and co-workers.(Tr. 16.) Thus, contrary to Stevenson's conclusory assertion, the functional limitations in this matter include limitations accommodating Stevenson's concentration, persistence, and pace. Further, to the extent that Stevenson relies on opinion evidence suggesting additional mental limitations, the ALJ's decision reflects that he considered this evidence, but the ALJ found these opinions were entitled to little weight. Stevenson has not challenged this evaluation by the ALJ. Accordingly, the court finds that Stevenson has failed to demonstrate that any greater limitations are warranted in this area. Thus, the court finds that remand is not warranted on this ground.
The court notes that since the ALJ's decision in this matter and after the conclusion of briefing by the parties, the Fourth Circuit found in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), that meaningful appellate review of an ALJ's residual functional capacity evaluation was frustrated, in part, where an ALJ limited Thomas to no work "requiring a production rate or demand pace." The Fourth Circuit found that the ALJ did not provide "enough information to understand what those terms mean." Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 (4th Cir. Mar. 8, 2019), that remand was required where a residual functional capacity assessment limited Perry to unskilled work in "non-production oriented work setting." The Perry Court found that "non-production oriented work setting" was not defined in the regulations or by case law and was not otherwise self-explanatory. Further, the ALJ failed to offer an explanation for that phrase, and therefore the Court found that it remained "uncertain as to what the ALJ intended" and could not "meaningfully assess whether there was a logical bridge between the evidence in the record and the ALJ's conclusion." Id. at *3. However, unlike in Thomas and Perry, the ALJ's limitation to no "fast-paced production requirements" is sufficiently clear and the ALJ provided sufficient additional limitations relating to concentration, persistence, and pace.
B. Severe Impairment
Step Two of the sequential evaluation requires the ALJ to "consider the medical severity of [a claimant's] impairment(s)." 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The claimant bears the burden at this step to show that she has a severe impairment. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). "Basic work activities" means "the abilities and aptitudes necessary to do most jobs." Examples of these include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;20 C.F.R. §§ 404.1522(b), 416.922(b). "[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984) (internal quotation marks omitted).
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.
At Step Two, the ALJ found that Stevenson's affective disorder, post-traumatic stress disorder, and anxiety disorder were severe impairments, but that Stevenson's obesity and degenerative disk disease were nonsevere. (Tr. 14.) The ALJ found that Stevenson's obesity and degenerative disk disease "cause no more than minimal limitation in the ability to perform work related activity." (Id.) Stevenson argues that the ALJ erred in failing to find her lumbar spine impairment severe. In support of this argument, Stevenson directs the court to a lumbar spine x-ray performed in July 2015 indicating "mild spine boney degenerative changes" and "[m]ild disc height loss L4-L5." (Tr. 350.) Stevenson conclusorily argues that the impairments described in this x-ray "would clearly cause a significant limitation in the use of the lumbar spine, which would affect the basic work activities of walking, standing, sitting, lifting, and/or carrying." (Pl.'s Br. at 8, ECF No. 10 at 8; Pl.'s Reply at 4, ECF No. 13 at 4.) Stevenson has offered no support for this assertion. Stevenson also relies on her testimony (Tr. 38-39) and select records indicating tenderness to palpation (Tr. 269, 275, 346, 396), positive straight-leg raise testing (Tr. 269, 396), left scoliosis with right compensation of the lumbar spine (Tr. 342), and pain with cross leg testing (Tr. 396).
The court has thoroughly reviewed the evidence cited by Stevenson and finds that Stevenson has failed to demonstrate that the ALJ's findings are unsupported by substantial evidence. None of the evidence cited by Stevenson is sufficient to render the ALJ's evaluation of Stevenson's lumbar back pain unsupported. See, e.g., Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"). Thus, the court finds that remand is not warranted on this issue.
Moreover, even if the court were to find that the ALJ erred in failing to find this impairment was a severe impairment, Stevenson cannot establish any harm solely from this error, as a review of the decision reflects that the ALJ considered the medical evidence relating to this alleged impairment throughout the decision. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error here became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."); Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) (adopting Report and Recommendation that included a collection of cases and finding "no reversible error where the ALJ does not find an impairment severe at step two provided that he or she considers that impairment in subsequent steps"). For example, the ALJ considered Stevenson's testimony of back pain. The ALJ observed that during a consultative physical evaluation in December 2014 Stevenson reported low back pain, but "[e]xamination revealed full 5/5 in all extremities with no crepitus, deformity, or edema. Straight leg raising was negative and the claimant was able to squat fully and arise and tandem walk. Her fine dexterity was normal and she had no atrophy is any location." (Tr. 17.) The consultative examiner diagnosed nonspecific low back pain and determined that Stevenson had no permanent work restrictions or limitations. The ALJ gave this opinion significant weight. Accordingly, Stevenson has failed to demonstrate that remand is warranted for further consideration of this issue.
RECOMMENDATION
For the foregoing reasons, the court finds that Stevenson has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g); Coffman, 829 F.2d at 517. The court therefore recommends that the Commissioner's decision be affirmed. May 31, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).